Judicial Opinions & Common Law

The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. – Oliver Wendell Holmes, Jr., The Common Law

It is a maxim among these lawyers, that whatever hath been done before, may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. – Jonathan Swift, Gulliver’s Travels

3.1 Learning Objectives for Chapter 3

In working through this chapter, students should strive to be able to:

Evaluate the editorial content added to opinions by publishers of reporters.

Explain how the West Key Number/Digest System functions.

Use digests and reporters in combination to reconstruct the common law on a given subject.

3.2 Judicial Opinions and the Common Law

As discussed in Chapter 1, both constitutional and statutory provisions generally consist of language too broad to be applied to specific facts without an act of interpretation. In the U.S. legal system, the judiciary serves as the primary interpreter of the law.

Courts issue their interpretations as judicial opinions, which then act as precedent to create lasting legal rules. Sometimes (maybe even most of the time) lawyers will refer to opinions as cases. However “opinion” is a more precise term, as a single case can feature more than one opinion. Multiple opinion cases occur when not all the judges77 hearing a case agree on the result. If a majority of judges agree, they will designate one of their members to issue a majority opinion, which is the strongest form of judicial precedent. If an individual judge disagrees with the majority opinion, she may issue a dissenting opinion. Similarly, if an individual judge agrees with the end result of a case, but not the legal reasoning that led to the result, she may issue a concurring opinion. Both dissenting opinions and concurring opinions may be cited as persuasive precedent, but neither will be as strong a precedent as a majority opinion.

To further complicate matters, judges may “join” the opinions of their colleagues. In fact, the way a researcher can tell that a majority opinion is a majority opinion (other than by the fact it comes first in the write-up), is by seeing that a majority of the judges have joined it. Judges may also join dissents or concurrences instead of issuing their own. Furthermore, judges sometimes only join parts of an opinion, if they only agree with certain issues. After all the judicial maneuvering is said and done, sometimes a court will be left without a majority opinion but will have to issue a plurality opinion instead. Plurality opinions act as much weaker precedent than majority opinions. Thus, when a legal researcher finds a relevant opinion, she should pay attention as to its origins.

Once issued, judicial opinions act as precedent for later courts, thus opinions provide their own legal rules that become part of American law. Lawyers call such judge-made rules “common law.” Common law can develop from a statute or constitutional provision by creating a standard interpretation of the same, or it can develop independently of constitutions and statutes. Miranda Rights serve as an example of the former. The Fifth Amendment, in rather broad language, guarantees people accused of crimes the right of “due process.”78Miranda v. Arizona, a U.S. Supreme Court case, interpreted due process as requiring police to inform a suspect in custody of her constitutional rights before interrogating her.79 Later cases applied that ruling as precedent and developed the law further by discussing what exactly qualifies as “custody” or “interrogation.”80 Thus, judicial opinions have created specific legal rules as a common law of the Fifth Amendment.

Judge-made rules also exist independently of constitutional or statutory interpretation. Typically, these rules became articulated by judges prior to the widespread use of statutes. Most such rules were part of the body of English law that American colonists originally brought with them from the Old Country. Indeed, “common law” can also be used to refer only to the traditional, customary laws that developed in England.81 Many English common law elements still persist in American law, especially in the fields of Torts and Property.

Regardless of whether working on problems of statutory interpretation or application of historic common law rules, legal researchers tend to spend much of their time conducting case-based research. Researching judicial opinions tends to take more time than researching codes, as cases tend to be longer than statutes and also do not benefit from the inherent organization provided by the process of codification. Let us thus turn to how one goes about researching cases.

As with statutes, the information systems for publishing judicial opinions came about before the advent of computers. When the legal publishers began providing electronic content in the latter part of the twentieth century, they imported the already-extant information systems to the new format. Thus, as we did with statutes, we will here introduce judicial opinions in their print format and will save electronic research for Chapter 5.

3.3 Case Reporters

The practice of republishing judicial opinions for dissemination and use has existed since medieval times.82 However, prior to modern times, only select cases on pre-identified topics tended to be published.83 Also, reports of opinions that were published tended to focus on limited geographic areas, leaving lawyers with far fewer precedents with which to work. The modern system of publishing judicial opinions began in the late nineteenth century when John B. West systematically collected appellate-level opinions and published them in multi-volume sets he termed “reporters.” West Publishing continues to publish the dominant amount of American caselaw to this day, and West’s reporters continue to see use.

3.3.1 Types of Reporters

West, and to a lesser extent its competitors84, produce several broad types of reporters. Simplest are jurisdictional reporters, which publish reported cases from a single jurisdiction. For instance, West’s Kentucky Decisions includes reported opinions from Kentucky state courts. Sometimes, the publisher limits the scope of jurisdictional reporters to opinions from a specific judicial level, as West does with its various reporters for federal cases. The Supreme Court Reporter, for example, republishes opinions only from the United States Supreme Court. Likewise, the Federal Reporter publishes opinions from federal Courts of Appeal, and the Federal Supplement publishes select cases from U.S. District Courts.85 Some jurisdictions publish their own opinions in “official” reporters, the most notable being the United States Reports containing opinions issued by the Supreme Court of the United States and published by the Government Publishing Office. Official reporters generally work similarly to West’s jurisdictional reporters although without the helpful editorial material that West provides.86

In addition to jurisdictional reporters, West also publishes reporters that gather opinions from several different states into one series, called regional reporters. Please note that regional reporters exist as a publishing contrivance only. Therefore, just because two states’ judicial opinions appear in the same reporter, it does not mean that the opinions are in any way related. For instance, cases from Kentucky and cases from Texas both appear in the South Western Reporter, but opinions from Kentucky would carry no more weight in Texas than opinions from Maine, which are found in the Atlantic Reporter, would.

Figure 3.3.1: A Map of West’s Regional Reporter System

Beyond regional reporters, another instance exists in which legal researchers might find cases from multiple jurisdictions within a single reporter set. Sometimes publishers will create topical reporters, which gather opinions from all U.S. jurisdictions that touch upon the reporter’s central theme. For instance, West publishes the Education Law Reporter, which contains a variety of state and federal cases dealing with issues of law as applied to the education profession.

Note that legal researchers may often find the same judicial opinion in any number of reporters. For instance, a case dealing with education law from the Kentucky Court of Appeals could probably be found in the Kentucky Decisions, the South Wester Reporter, or the Education Law Reporter. Nothing about the opinion changes from reporter to reporter. In other words, it does not matter where a legal researcher finds a needed precedent, just that she does so.

3.3.2 Finding an Opinion in a Reporter

As with statutes and codes, a legal researcher most easily retrieves an opinion from a reporter if she has a citation in hand. Unlike codes, however, reporters do not impose a topical organization upon the legal authorities they contain. Instead, reporters publish opinions in chronological order as courts hand them down. Therefore, obtaining a citation to a case takes on paramount importance. Luckily, before engaging in case research, a good legal researcher will have checked for controlling statutes and made note of key case citations found in a relevant statute’s annotations, so it is not unusual to begin case research with a citation in hand.

Case citation works very similarly to code citation. A citation to a case begins with a number, proceeds to an abbreviation, and then ends with another number. The first number in a case citation refers to the volume of the reporter in which the case appears. The abbreviation alerts researchers as to which reporter contains the case87, and the final number signifies the page of the reporter volume on which the case begins. For example, Rose v. Giamatti, 721 F.Supp. 906 (S.D. Ohio 1989) begins on page 906 of volume 721 of the Federal Supplement. Often, the first number of a case will be immediately followed by a comma and a second page number. The second page number acts as a “pin-cite” referring the reader to the specific page of the case on which the issue being cited is discussed. Going straight to a pin-cite may save a researcher time, though the whole case should be read for context, of course.

Note that when we speak of citations, we speak of them as referring to cases, not opinions. This is because all opinions issued in a case are published together as one unit in the reporter. Typically, however, a citation to a case will be alluding to the majority (or plurality, if that is the case) opinion of the court unless it specifically identifies a concurrence or dissent.

A couple of other unique circumstances affecting case citation bear mentioning. First, sometimes cases appear in more than one reporter. Thus, a legal researcher may encounter parallel citation, in which one case citation refers to multiple reporters. In this case, the researcher may pull the desired case from whichever of the referenced reporters strikes her as most convenient. Second, because book spines feature limited space, when a reporter set reaches 999 volumes, rather than try to squeeze an extra digit onto the spine, the publisher starts the numbering over. To avoid confusion when this happens, the reporter enters its “second series” (or third series in the case of an exhausted second series). Citations to reporter series other than the first include a notation to that effect next to the abbreviation of the reporter title. For example, F.2d refers to the second series of the Federal Reporter. Thus, citations truly make it easy for researchers to pull cases from reporters.

3.3.3 Using a Reported Case

Once a legal researcher locates a case in a reporter, she will, of course, be able to read all opinions issued in the case. However, reading full cases can be a time-consuming process. To increase the efficiency of legal research, West includes valuable editorial content for cases in its reporters, much as publishers of annotated codes do.88Figure 3.3.3 illustrates the editorial content provided by a West reporter.

The first thing to note about a reported case (as lawyers call cases that appear in reporters) is that the actual judicial opinion does not start right away. In fact, the opinion will sometimes not start for pages! This happens because West places its editorial content before the opinions. This information is often introductory and allows the researcher to more quickly parse the content of the actual opinion.

Figure 3.3.3: A Case as it Appears in a West Reporter

The first bit of information a reported case gives to a researcher comes in the heading of the case. The heading includes the case name, the name of the court that heard the case, the docket number assigned by the court, and any relevant procedural history for the case. A short synopsis of the case, including the holding of the majority opinion, immediately follows the heading. Thus, before reading an entire opinion, a legal researcher can make an advance determination as to its worth by scanning the heading and synopsis.

After the synopsis, West provides the most useful of the editorial content included in reporters: headnotes. Headnotes identify specific legal issues addressed in the opinion(s) of the case. Thus, a researcher can tell at a quick glance whether the issues she wants were considered in a case. Furthermore, West includes notes within the text of the opinion(s) indicating where in the opinion(s) the court considered the specific issues described by the headnotes.

In addition to helping the researcher identify legal issues within an opinion, West’s headnotes provide the ability to find other cases that discuss the same issue. West assigns a “topic and key number” to every headnote its editors create. Each key number refers to a specific legal issue found in the jurisprudence of its accompanying topic. Different judicial opinions that discuss the same issue will all receive the same corresponding topic and key number. To find other cases with the same topic and key number, a legal researcher turns to the other major type of West publication for case research: the digest, which we will discuss in section 3.4.

3.3.4 Unreported Cases & Court Dockets

Not all cases heard in the United States make it into a reporter. Cases will be passed over for inclusion in a reporter for a variety of reasons. First, cases from trial-level state courts tend to focus more on findings of fact rather than on determinations of law, and so are usually not published.89 Second, sometimes a judge, even at the appellate level, will indicate in an opinion that it is not for publication. She may do this if the case breaks no new ground legally and so adds nothing to the precedents on which it was decided. Alternatively, the facts in the case may be unique or bizarre enough that the judge thinks creating a precedent from the case might cause havoc with other precedents. Whatever the reason behind not being included in a reporter, though, lawyers deem opinions issued in unreported cases to be “unpublished” and do not view them as having full precedential value. Note that West’s Federal Appendix reports cases that were originally passed up for publication in West’s other reporters. As such, researchers should view cases from the Federal Appendix as unreported, and should view their opinions as unpublished, to be used only with extreme caution.

In fact, until relatively recently, courts only allowed citation to unpublished opinions in very limited circumstances. However, with the advent of computer-assisted legal research (which will be discussed in Chapter 5), unpublished opinions have become somewhat easier to find. As a result, in 2006, the Supreme Court of the United States adopted a rule permitting the citation of unpublished federal opinions in federal courts, provided that the unpublished opinions were issued in 2007 or later.90 Most states now make similar provisions, though the exact details vary. Researchers should check the court rules of their jurisdiction before using an unpublished opinion to ensure doing so is permissible.

The reason that courts traditionally treated unpublished opinions with skepticism derives from the difficulty in finding unpublished opinions prior to the electronic research era. Because the primary way of finding precedent in print was through the use of the reporter and digest system, any case not included in a reporter would have been overlooked by the majority of researchers.91 In fact, prior to the computer age, the primary way of obtaining an unpublished opinion was to retrieve it from the court docket at the court that heard the case.

Court dockets are records kept by the court of proceedings in a particular case. For the legal researcher, dockets can be a treasure trove of information because they typically note all the documents, or court filings, submitted by parties or produced by the court related to that case. In addition to the final opinion, a researcher may be able to see the briefs (written arguments) submitted by both parties, the motions they made in court, exhibits presented, court orders on motions, any final court orders regarding the proceedings, and more.

An enterprising researcher can explore other uses for dockets beyond gathering more information about an individual case. She can use dockets to find examples of motions, arguments, and other documents related to a particular legal issue and use them to inform her own legal documents. If a case involves a corporation, sometimes it must reveal information to the court that they otherwise would never disclose to the public. A researcher could potentially use documents submitted to the court to find out about financial issues within the company, confidential information regarding patents, or other useful information.

Nowadays many courts provide online access to their more recent dockets, and researchers can generally find court filings electronically using the major legal research platforms discussed in Chapter 5. However, some states do not put their dockets online, or sometimes a researcher may wish to look at a docket that predates electronic filing. In order to obtain materials from a docket unavailable electronically, a researcher should contact the clerk of the court that heard the case in question.

Generally speaking, though, published opinions are much more valuable to a legal researcher than unpublished opinions or court filings. Let us now turn to the tool that allowed lawyers to find published opinions on particular topics prior to the invention of computers: the digest.

3.4 Digests

Digests, though themselves large multi-volume sets, act as topical indexes to the even more voluminous reporter sets. Remember, reporters themselves lack topical organization—the lengthy nature of judicial opinions would make any such internal organization highly impractical—and instead work with the external organization provided by digests. Likewise, digests do not reproduce judicial opinion, but provide short summaries of cases and citations to the same organized by topic. Thus, both reporters and digests are of limited use without the other.92

3.4.1 Types of Digests

For the most part, West publishes the same types of digests as it does reporters, though there are some key differences in coverage between the two types of publication. Like reporters, digests come in jurisdictional, regional, and topical varieties. Additionally, West publishes general digests that can potentially lead researchers to opinions issued in any jurisdiction in the U.S.

Legal researchers probably use jurisdictional digests more than any other type. West publishes jurisdictional digests for most individual states and the District of Columbia.93 State digests, unlike state reporters, include references to both state cases and related federal cases that originated in the state in question. In addition to individual state digests, West publishes a number of federal digests. Some, like the Supreme Court Digest, index cases from a single court. However, the Federal Practice Digest leads researchers to published opinions issued by any federal court, regardless of level.

West also publishes several regional digests that mostly correspond to the regional reporters. Note, however, that not every regional reporter benefits from a companion regional digest.94 Regional digests lead researchers to opinions issued by state courts for the same states covered by the corresponding reporter.

As West publishes topical reporters, so too does it publish topical digests to accompany the reporters. For example, lawyers working for a university might consult the Education Law Digest in combination with the Education Law Reporter.

In addition to the types of digests corresponding to types of reporter, West publishes the General Digest, which can potentially lead researchers to opinions from any U.S. jurisdiction. Because of the sheer amount of information involved in such an undertaking, West periodically publishes the Decenniel Digest.95 When a new edition of the Decenniel Digest appears, the General Digest then starts anew. Thus, if depending on a one-stop-shop approach to researching with digests, lawyers must consult both the Decenniel and General Digests.96

Fortunately, all of West’s digests use the same system, the topic and key number system. Thus, once an aspiring legal researcher learns to use one digest, she will be able to use all of them.

3.4.2 Using Digests to Find Opinions

As discussed above in section 3.3.3, West editors assign a topic and key number to every headnote they create upon reading cases. Each key number corresponds to a specific issue within its topic, and judicial opinions that discuss the same issue will feature the same topic and key number. Please note that each topic in the system begins with key number 1. In other words, West reuses numbers, so knowing key numbers without knowing the corresponding topics does researchers little good.

If, however, a legal researcher knows the topic and key number that correspond to the issue for which she is looking, she can simply look up the topic and key number in a digest and retrieve a list of cases that have considered the issue in question in the jurisdiction(s) covered by that digest. Furthermore, the digest provides brief summaries of each case so that the researcher can make an informed decision as to which cases she wants to pull from their respective reporters first. Figure 3.4.2a provides an example of a typical digest entry.

As a caveat, many West digests have started over in new series, much like the West reporters. For instance, the Kentucky Digest2d continues the Kentucky Digest. Similarly, the Federal Practice Digest is now onto its 5th series.97 The key fact to remember about digest series is that they are not cumulative. Therefore, in order to find judicial opinions from the whole range of years available, a researcher must consult all the various series of a particular digest. West publishes an editorial note at the beginning of each volume of a digest providing researchers with notice of the year-range covered by that particular series of the digest.

Figure 3.4.2a: Sample Entry from the Federal Practice Digest 5th

Digests act as a powerful tool for finding judicial opinions, but to use them a legal researcher must know the topic and key number that correspond to the legal questions he wants answered. Fortunately, appropriate topics and key numbers can be discovered in several ways.

First of all, as discussed above, every headnote attached to a West-reported case features a corresponding topic and key number. Therefore, if a researcher has discovered one opinion on point, she can lift topics and key numbers from headnotes of interest to discover other cases addressing the same point of law. Similarly, if a researcher has found a relevant statute in an annotated code published by West, then the annotations will likely alert her to any relevant topics and key numbers. See, for example, the annotations in Figure 2.4.2 in Chapter 2.

Fortunately, even if a researcher does not already have a topic and key number in mind, West digests provide ways to find topics and key numbers of interest. First, at the end of every digest, a researcher will find an index, termed the Descriptive Word Index, which works almost identically to the indexes accompanying codes. A researcher would look up a general term that covers the legal issue in question. Instead of code sections, however, a digest’s index lists topics and key numbers for the various issues and sub-issues. Once a researcher has looked up a term in the index to discover its topic and key number, she can then look up that topic and key number in the corresponding main volume of the digest for a list of cases related to the issue. Note that the index itself does not provide case citations; it must be used in conjunction with the main volumes of the digest.

In addition to providing indexes for digests, West divides all of American law into topics, which it fits into an overarching Outline of the Law. Indeed, the topics from this outline are the same that accompany key numbers, and West places the key numbers themselves onto the outline. West publishes its general outline of the law at the beginning of digest volumes. Additionally, in front of each topic in the digest, West provides a more detailed outline of that specific topic. Thus, legal researchers possess the option of browsing through West’s outlines to narrow in on a specific issue’s topic and key number, much as researchers might use a code’s tables of contents to narrow in on specific sections. Figure 3.4.2b gives readers an idea of what West’s Outline of the Law looks like.

Figure 3.4.2b: An Excerpt of West’s Outline of the Law as found in the Federal Practice Digest 5th

By using the Descriptive Word Index or the Outline of the Law, researchers can identify relevant topics and key numbers they can then use to find case citations, which in turn would allow the researcher to pull relevant judicial opinions. Of course, the opinions themselves may lead the researcher to additional topics and key numbers of interest through the headnotes provided by West. Researchers may then look up the additional topics and key numbers in a digest in order to find additional cases. Thus, the topic and key number system provides a powerful tool for researchers to find judicial opinions.

West digests also provide a couple of other ways to find cases in addition to the topic and key number system. First, digests contain Tables of Cases volumes that allow researchers to look up cases by the name of either party. Second, digests contain Words and Phrases volumes, which allow researchers to look up a specific word or phrase to find opinions using that exact word or phrase. Both Tables of Cases and Words and Phrases volumes, unlike the topic and key number volumes, will provide case cites in addition to the topics and key numbers assigned to the case. While a researcher would need more starting information to use either of these types of volumes, they do provide an alternative access point to caselaw for print researchers and demonstrate the comprehensiveness of West’s digest and reporter system.

In fact, as discussed above in section 3.3.4, West’s digest and reporter system acted as the sole means of finding precedent for so long that courts deem opinions not published in one of West’s reporters to be less than fully precedential. In the modern era of electronic legal research, lawyers more often encounter such “unreported” opinions. Lawyers need to react to such opinions with caution and to avoid using them as key precedent. Indeed, most courts will only consider unreported opinions under certain circumstances. To determine if a court will consider an unreported opinion, legal researchers should consult the court rules for the jurisdiction in question.98 Thus, understanding West’s reporter and digest system remains important even when conducting electronic legal research.

3.4.3 Updating Digests

When a researcher uses a print edition of a digest, she should keep in mind that, like all print materials, individual digest volumes describe the state of the law at a particular moment in time. By its very nature, however, American law constantly changes with every new judicial opinion published. Thus, it becomes necessary for legal researchers to update the information found in print digests.

Because lawyers desire consistency in legal publishing, just as they desire consistency in the law, the primary means of updating the information in digests takes the same form as the primary means of updating the information in annotated codes: the pocket part. In fact, pocket parts for digests work in exactly the same way as pocket parts for codes.99 If a topic and key number appears in the pocket part, then something about it has changed since publication of the main volume. If a topic and key number does not appear in the pocket part, then nothing changed since the publication of the main volume. Additionally, West may have created a new topic and key number since publication of the main volume. In this instance, the topic and key number will appear in its entirety in the pocket part and not at all in the main volume.

West actually updates the Outline of the Law governing the topic and key number system quite frequently. Legal rules or issues may fall out of use, and so key numbers may be dropped. More often, opinions introduce new rules or issues, resulting in the addition of new key numbers. Furthermore, sometimes judicial opinions take a rule from an earlier opinion and expand upon it, or break it into multiple rules. When this happens, West may need to adjust its numbering. When an area of law changes sufficiently, West may even renumber an entire topic.

Renumbered topics often confuse law students who are new to legal research. Feelings of frustration may occur when a student has identified a relevant topic and key number from an old case headnote only to discover that the digest no longer contains that topic and key number. Students should not panic when this occurs, though, because West includes key number conversion charts at the beginning of every topic which has been renumbered.

Note that one old key number often becomes multiple key numbers in renumbered topics. Researchers should look at each of the new topics to understand how the law has changed. Note also that West includes key number conversion charts that operate in the reverse direction, i.e. new key numbers to old key numbers. West does so because, to find older cases on an issue, a researcher may need to consult earlier series of a digest, since digests are not cumulative. Naturally, the older digest series would not use the new numbering scheme.100

3.5 Subsequent Treatment of Judicial Opinions

Of course, changes in the law, by definition, affect not only legal publishing but also the actual law itself. As we have seen, the precedential weight of judicial opinions varies. Furthermore, subsequent treatment of an opinion, by later opinions or by legislatures, often affects the continuing utility of the rules contained in the opinion. Thus, finding and reading an opinion, merely represent the first steps in case-based research; a lawyer must also evaluate an opinion’s applicability to her client’s circumstances in light of the treatment the opinion has received since it was issued.

Subsequent treatment of an opinion ranges from positive to negative. On the positive side, later opinions may discuss, explain, or cite an earlier opinion. If a later court cites an opinion on a specific point, it has implicitly approved the legal rule from the earlier opinion. Such positive citations tend to increase the precedential value of opinions.

Judicial opinions also sometimes suffer negative subsequent treatment. For instance, a holding may be overturned in whole or in part by a higher court. Furthermore, appellate courts may overturn their own earlier decisions. A famous example of this occurred when Brown v. Board of Education overturned the earlier Supreme Court decision, Plessy v. Ferguson.101 Sometimes, a later court may limit or abrogate an earlier opinion without explicitly overturning it. Similarly, if a legislature dislikes a rule from a particular judicial opinion, it can pass a statute changing the law that the opinion had interpreted. The statute would then take precedence over the opinion. Lawyers refer to opinions thus affected as having been superseded by statute.

Finally, later judicial opinions may “distinguish” an earlier case. Distinguishing lies somewhere in between positive and negative treatment. An opinion that distinguishes an earlier opinion essentially recognizes the rule from the earlier opinion as valid but goes on to state that the rule should not apply in the current case because of different material facts. On the one hand, the rule from the earlier opinion remains valid. On the other hand, the rule now only applies to an at least somewhat limited set of facts. The more times an opinion has been distinguished, the narrower its factual application tends to be. Legal researchers who discover a distinguished opinion should carefully evaluate whether their clients’ facts fall closer to the original opinion or closer to the distinguishing opinion.

Obviously, then, legal researchers need to be able to find the subsequent treatment of an opinion. Historically, lawyers used a print publication called Shepard’s Citations to evaluate the subsequent history of an opinion.102 Using Shepard’s Citations in print involved looking up a citation in a bound volume that contained a chart of citing opinions, along with symbols indicating how the later opinions treated the earlier one. Researchers would then look up the citation in a series of supplements that updated the bound volume. The process was fairly inefficient, and in the twenty-first century, lawyers obtain synopses of opinions’ subsequent treatment almost exclusively electronically.103 Electronic methods of checking an opinion’s subsequent history will be covered in depth in Chapter 5. Because of the near-total predominance of electronic citators in modern legal practice, Shepard’s in print will not be covered in this work. However, students should be aware that accounting for the subsequent treatment of precedents has always been a part of the practice of law in the United States. Furthermore, they may occasionally see references to the updating service of the pre-computer era: Shepard’s Citations.

Thus, legal publishers provided tools that enabled lawyers to effectively research judicial opinions long before the advent of computers. Use of these paper-based tools generally consumed a significant amount of time, and so their use by lawyers has tapered since the advent of computer assisted legal research. However, the electronic platforms themselves rest upon the base organization developed for print. As such, aspiring legal researchers should ensure that they understand the way the paper-based systems function.

3.6 Concluding Exercises for Chapter 3

Now try your hand at using digests and reporters to find relevant judicial opinions. As with statutes, if you do not have access to a particular print source for the jurisdiction called for by an exercise, try substituting a jurisdiction to which you do have access.

3.6.1 Introductory Exercise on Case Research

Hello Team:

We have been retained by Molly Lancaster-Ferguson, owner of Awesome Antiques, to defend her from a pending Federal prosecution. The federal charges stem from an isolated incident in which Ms. Lancaster-Ferguson sold an original 1861 Enfield Rifled Musket (a single-shot, muzzle-loading rifle manufactured in Enfield, England, and imported/smuggled in large quantities to arm Confederate troops during the Civil War), which she had found at a garage sale, to an undercover federal agent posing as an online buyer. To the extent of her recollection, the incident in question is the only time that Ms. Lancaster-Ferguson has ever sold a firearm, and she was unaware that it was illegal to do so. The federal authorities have nonetheless charged her with violating a federal law that requires all dealers of firearms to be properly licensed. She is set to be tried in the Eastern District of Kentucky.

Use the Federal Practice Digests (potentially more than one series) to look into the following:

Find me a case, preferably binding, on whether an individual who does not know dealing in weapons without a license is against the law can be convicted of the same.

Are there any federal cases, binding or persuasive, that have held that one isolated gun sale does not amount to “engaging in the business of dealing in firearms without a license”?

Based on your findings, do you think it is likely that we can ultimately get an acquittal?

Thanks,

Ms. Partner

3.6.2 Intermediate Exercise on Case Research

Hello Team:

One of our best clients, Robert Standersen, has made a slightly unusual request of us. Normally, we handle corporate law issues for his orthodontist practice. However, he has asked that we defend his twin children, Brian and Yvette in a criminal conspiracy action being prosecuted by the Commonwealth of Kentucky.

Brian and Yvette are seniors at Tates Creek High School. They were arrested while playing hacky-sack in the parking lot of Henry Clay High School last Thursday night at 11:30 pm. Two other Tates Creek High students, Vic Vandal and Hal Hooligan, were also arrested at approximately the same time. Vandal and Hooligan were caught exiting the locked building of Henry Clay High School in possession of crowbars and several soccer championship trophies stolen from display cases in the school’s hallway.

Neither Vandal nor Hooligan implicated the Standersen twins in the burglary, so the state’s case of conspiracy to commit burglary against the twins consists solely of the following pieces of circumstantial evidence:

Brian and Yvette are classmates of Vandal and Hooligan at Tates Creek High School and were found at the scene of the crime.

Tates Creek and Henry Clay are soccer rivals. Their annual game occurred the night after the incident in question.

The Commonwealth’s Attorneys are advancing the theory that Brian and Yvette were “standing watch” for Vandal and Hooligan. I need you all to find post-1974, binding caselaw (Kentucky’s current penal code was enacted in 1974) to answer the following questions:

Is circumstantial evidence alone enough for a conspiracy conviction in Kentucky?

Is merely being present at the scene of a crime sufficient for a conspiracy conviction in Kentucky?

Is the Commonwealth likely to succeed in its prosecution? Why or why not?

Thanks,

Ms. Partner

3.6.3 Advanced Exercise on Case Research

Hello Team:

As you are no doubt aware, we represent Bob “Bubba” Hicklin (founder and CEO of Black Sky Coal) for most of his legal needs. One of Mr. Hicklin’s hobbies is breeding and training Bluetick Coonhounds. Seventeen years ago, he purchased a large tract of land along the Tennessee-North Carolina border which he has used since then as his dogs’ breeding/training ground. Unfortunately, Mr. Hicklin did not survey his lands correctly (he did it himself, another hobby), and the rather large kennel he built at great cost actually lies on lands owned by the Cherokee Nation of North Carolina.

The Cherokee have now initiated a legal action against Hicklin for the land and the kennel in the U.S. District Court for the Western District of North Carolina. While the Cherokee Nation does appear to hold title to the land in question, I would like to be able to use the doctrine of adverse possession as a defense. However, I’m not sure if I can use North Carolina’s adverse possession laws against the Cherokee as tribal lands fall at least partially under federal jurisdiction. I need you to:

Find me a case from the past 30 years or so (we don’t want anything decided before the Indian Civil Rights Movement in the 70s), preferably binding over the Western District of North Carolina, which answers whether or not a state adverse possession defense can be used against Indian lands?

Assuming that you find a relevant case, does it tip you off to any other topics/keynumbers that we might want to look at that pertain specifically to Indians and land title? (Keep in mind that nobody at the firm has an expertise in Indian law, so basic definitions might be helpful.) What topics and keynumbers will be most useful to us?

Applying relevant authorities to our facts, are we ultimately likely to succeed? Why or why not?

Thanks,

Ms. Partner

3.7 Recommended CALI Lessons for Further Practice

CALI hosts an impressive number of interactive lessons on its website. The following lessons on researching cases in print touch upon material covered in this chapter. They would be a great place to start for students looking for further practice on the concepts introduced in this chapter!

83 The official United States Reports was an exception to this trend, as it has always included every Supreme Court opinion issued.

84 Because the term “lion’s share” does not even begin to do justice to West’s dominance of publishing judicial opinions, most of the discussion in this chapter will focus on West publications.

85 Note that not all district court opinions are published. Trial level opinions, because they mix application of law with finding of facts, do not make as good a precedent as appellate opinions. Therefore, West only includes particularly significant district court opinions in the Federal Supplement. West also publishes the Federal Appendix which includes cases originally passed over for publication. Opinions in the Federal Appendix do not count as fully published opinions, per se, and so legal researchers should not rely on them as precedent.

86 Similar to statutes, researchers often find West’s unofficial reporters to be more useful than official reporters, due to the extra editorial content.

88 Note that the editorial content merely helps explain or interpret the case; it does not itself act as precedent. As such, lawyers never cite to editorial content but rather use it to understand and cite the case it accompanies.

89 The same holds true for some federal district court cases, though West publishes federal district opinions that do make determinations of law in the Federal Supplement as discussed above in section 3.3.1.

91 Cases appearing in the Federal Appendix can be found via a print digest, but these represent a very small percentage of the unpublished cases out there and do not, of course, include any state cases.

92 Note, however, that a digest can also be used effectively with an electronic database of cases. The basic steps would be the same except that instead of pulling a case from a reporter, the researcher would retrieve the case by entering its citation into a legal search engine.

93 West does not publish a digest for Delaware, Nevada, or Utah. To find opinions from these jurisdictions using only print sources, researchers would need to consult the relevant regional digest or the general digest.

94 West never published a digest for the South Western Reporter. Furthermore, West has discontinued the North Eastern Digest and the Southern Digest. Researchers in jurisdictions covered by those regions would need to consult the relevant state digest or the general digest in order to find opinions using print sources.

95 Although the period between publications of the Decenniel Digest used to be 10 years, as suggested by the title, in modern times of heavy case loads, West now publishes it more often.

96 Indeed, they should probably consult the Centenniel Digest, which predates the Decenniel Digest, as well.

97 The Federal Practice Digest 5th is actually the sixth series of the title, as the original Federal Practice Digest replaced the precursor Federal Digest.

98 Commercial legal publishers generally provide a jurisdiction’s Court Rules at the end of its code. Legal researchers may thus find specific court rules by the same methods, described in Chapter 2, with which they would find code provisions.

99 Also like pocket parts for codes, pocket parts for digests will be replaced by softbound supplements should they become too big to fit in a bound volume. Eventually the bound volume itself will be replaced.

100 Although exceptions exist, West typically does not continue to issue pocket parts for non-current digest series.

102 Note that Shepard’s Citations could also be used to find subsequent treatment of statutes, though the fact that statutes were published with annotations made this somewhat less necessary as an extra step.

103 Note that one of the available electronic services for doing so is, in fact, Shepard’s, now available on Lexis Advance.